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That BestWater order: it's up to the rightholders to monitor online use of their works

Last week this blog reported that
the Court of Justice of the European Union (CJEU) had already issued its decision in
Case C-348/13 BestWater,
and had done so on 21 October last.

Shortly after breaking this (non-)news, this Kat
was informed that the form of the CJEU decision in BestWater was that of an order, as per Article 99 of its Rules of Procedure.

This accelerated [well,
kind of: the case was referred more
than a year ago, but was subsequently stayed pending the CJEU decision in ...
Case C-466/12 Svensson,
on which seehere, here and here] procedure
is possible "[w]here a question referred to the Court for a preliminary
ruling is identical to a question on which the Court has already ruled, where
the reply to such a question may be clearly deduced from existing case-law or
where the answer to the question referred for a preliminary ruling admits of no
reasonable doubt".

Oliver Löffel

This is what happened in BestWater, as Katfriend Oliver Löffel (LÖFFEL
ABRAR) helpfully explains:

"No, the BestWater decision of the CJEU following a
request for a preliminary ruling from the Bundesgerichtshof (Germany) has
nothing to do with any kind of concealment.

Although we must admit that something regarding this case seems vague. Several Germany lawyers started blogging last Friday about the decision.
Other lawyers were wondering on Twitter why there was neither an official
release of the decision nor a press release from the CJEU. Statements made in
German law blogs such as “Embedding is not copyright infringement”
provoked skeptical reactions of German lawyers, who started tweeting along the
lines “Let´s hope that this is no hoax, as it looks like a hoax”.

However, the decision posted on late Friday
afternoon last week on the website of a German lawyer is a final decision and
not just a draft. An official version of the decision will be available in
German and French within the next couple of weeks.

The
question that the Bundesgerichtshof had referred to the CJEU was the
following:

Does the embedding, within one’s own website, of
another person’s work made available to the public on a third-party website, in
circumstances such as those in the main proceedings, constitute communication
to the public within the meaning of Article 3(1) of Directive
2001/29/EC, 1 even where that other person’s work is not thereby
communicated to a new public and the communication of the work does not use a
specific technical means which differs from that of the original communication?

The
CJEU believed that the response to this question could be already found in
pre-existing case law, notably Svensson. Thus, the CJEU held
that [warning: this is Oliver's own translation]:

The embedding, within one’s
own website, of another person’s work made available to the public on a
third-party website, by means of a link using the framing technology, such as
that at issue in the main proceedings, does not by itself constitute
communication to the public within the meaning of Article 3(1) of Directive
2001/29 of the European Parliament and of the Council of
22 May 2001 on the harmonisation of certain aspects of copyright and
related rights in the information society [the InfoSoc Directive], insofar as the work concerned is
neither directed at a new public nor communicated by using specific technical
means that differ from that used for the initial communication.

Jiri is thrilled to be asked the same questions again and again

This means that embedding videos which are freely available
on, for example (and is it was the case here) YouTube,
does not constitute an infringement of the right of communication/making
available to the public if the work concerned is neither directed at a new public nor
communicated by using specific technical means different from that used for the
initial communication.

This said, it remains questionable whether
embedding copyrighted videos would never be tantamount to copyright
infringement, “even if the source video was uploaded without permission of
the right owner” (seeTorrentFreak report).

In the national proceedings in BestWater, the claimant has been claiming that its film [a 2-minute long commercial] was uploaded onto
Youtube “without its permission”. If and to which extent the work
had been communicated by the right owner itself on any other website is not
clear by reading the decisions of the Bundesgerichtshof or the CJEU, and
neither is the issue of whether the work was subsequently uploaded onto Youtube with
the permission of the copyright owner. So the facts of the case remain vague in
this respect. The CJEU’s reasoning that there is “in particular” no
“communication to the public” if the work is made available “with
permission”… (para 16. See to this effect Svensson, paras
25 - 28) does not really help solving these uncertainties.

Above all, it seems that the BestWater case has
left one issue unaddressed, namely whether it is a communication to the public
within the meaning of Article 3(1) of the InfoSoc Directive if a third-party
work has been made available to the public without permission. Internet users
could still be in hot waterif they embedded copyright-protected
videos from other websites, for example Youtube, if such videos were made
available to the public without permission from the copyright holder. Further,
embedding copyright-protected videos would be an infringement if the work
concerned was directed at a new public, eg
if the source video requires a login or other technological measures designed
to prevent or restrict acts which are not authorised by the rightholder."

***

Response to the question: "Should you be concerned as regards the type and nature of content you link to?"(if you are not Italianand are unsure as to whatthis gesture means, read here: it is #1)

IPKat readers will remember that the last two
points, ie whether lawfulness of
content and paywall circumvention, may alter the Svensson test
is something that this Kat discussed together with fellow Kat Albertohere and here, respectively.

By reading the order in BestWater, this
Kat is now under the impression that the CJEU thinks that: no, neither matters.

Why is that?

At paragraph 16 of its order the CJEU appears to side with the referring court, that had held the view that insertion
of links by means of framing does not constitute a communication to a new
public because the film was already freely available on YouTube (paragraph 10). In other
words: the subjective state of either the person who links or the rightholder
(has he/she had authorised the communication?) does not really matter. What
matters is only whether or not the content one links to is freely available on a website. This means that lawfulness of content may be irrelevant.

Having said this, does it matter whether the content
one links to resides behind a paywall? In this Kat's personal opinion, it
should matter, but the Court appears inclined to think otherwise. This is
apparent from paragraph 18 of the BestWater
ruling, in which the CJEU stated that if and to the extent that a work is
freely accessible on the website to which the link is directed, it must be
assumed that the relevant rightholders have, when they authorised this
communication, considered "all
internet users as the public". If this Kat had to bet, she would say
that, similarly to BestWater, also C More Entertainment will be decided by
means of a quick order.

Overall, it would seem that what the CJEU suggested in Svensson and reinforced in BestWater is that the
way the internet currently works cannot be altered for copyright-related
reasons, and that in any case it is up to the righolders to monitor use (and
misuse) of their works. It cannot be the responsibility of "linkers"
and "framers" to make sure that third-party copyright is not
infringed, nor are those the subjects that should considered as infringing.

That BestWater order: it's up to the rightholders to monitor online use of their works
Reviewed by Eleonora Rosati
on
Monday, October 27, 2014
Rating: 5

4 comments:

At paragraph 10 of its order the CJEU says that insertion of links by means of framing does not constitute a communication to a new public because the film was already freely available on YouTube.

Paragraph 10 of the BestWater order is only recapitulating the context of the question as set out by the Bundesgerichtshof. The CJEU's own thoughts only start at paragraph 12. In paragraph 16 it seems to explicitly require that the copyright holder has given permission for the earlier publication:

"Is this not the case, in particular because the work has already been made freely accessible to all internet users with permission of the copyright holder, then the [embedding] cannot be qualified as a 'communication to the public' within the meaning of art. 3(1) of Directive 2001/29."

Having said this, does it matter whether the content one links to resides behind a paywall? In this Kat's personal opinion, it should matter, but the Court appears inclined to think otherwise.

I don't see how this would follow from paragraph 18. If the work is behind a paywall, it is not "freely accessible on the website to which the link is directed".

As regards the first point you note, I have amended my post to clarify better what I infer from the Order: it seems to me that at para 16 the CJEU sides with the German court's position summarised at para 10.

As regards paywall circumvention, I am not really sure the Court is using such a strong language, ie that would consider any circumvention infringing. Of course, the Svensson judgment appeared to suggest that paywall circumvention is an infringement, but in BestWater the language appears more blurred than Svensson ... I guess we will have to wait for C More to have the definite answer.

I have read and re-read this order in the French version and in particular the operative part (para 20). In my view, the paywall restriction remains in place. In addition, the last sentence of para 18 refers to the rightolders having given permission i.e the "lawfulness" of the first communication.

Do you think both Svensson and BestWater decisions make Youtube’s restrictions* to use the Youtube content without Youtube player irrelevant? Can one download or capture Youtube videos and then upload (not embed) it to its own website? My first guess is yes – no new public. But is it “different technical means”.

*- (a) „you agree not to distribute any part of or parts of the Website or the Service, including but not limited to any Content, in any medium without YouTube's prior written authorisation, unless YouTube makes available the means for such distribution through functionality offered by the Service (such as the YouTube Player);“ (b) “you agree not to access Content through any technology or means other than the video playback pages of the Website itself, the YouTube Player, or such other means as YouTube may explicitly designate for this purpose”